We should feel justified in affirming the judgment in this case without an opinion but that learned counsel, with much apparent candor and earnestness, contend against the correctness of the judgment, and their argument demands respectful notice.
The action was brought in the District Court on the covenant of the defendants to pay to the plaintiff the sum of $3200, the consideration for six certain labors of land lying within the city limits of Brownsville.
There is certainly a misunderstanding on the part of appellant’s counsel of the nature and character of the covenant. They insist that the plaintiff was bound to make' paper transfers or titles to complete the chain of title from the Ayuntamiento of Matamoros. The passage in the covenant to which this question is referable reads-thus: “It is, however, distinctly understood that said Canales grants and conveys herein to the said parties of" *414"the second part the before-described lands only to the extent of the interest by the Hon. Ayuntamiento passed ■or granted.’1’ This covenant does not call for paper titles, but is only a covenant to secure to the defendants that title which the Ayuntamiento of Matamoros granted to any of the holders of the labors.
' This case has been decided by this court, and is reported in 25 Texas, 313; but it must evidently have been presented to the court under a different, state of facts and pleadings, else it is in direct conflict with a case of Strother v. Lucas, 12 Peters, pp. 436, 447, 449, in which case the. doctrine of titles in' the Spanish-American countries is afbly discussed and clearly laid down.
■ The pleadings in this case would not warrant us in following the opinion as reported in 25 Texas, 313. The answers are indefinite and do not present the issue insisted on by appellant’s counsel. They do not allege an ouster ; they do not say their title has failed, or that the plaintiff has failed, strictly speaking, to comply with his < covenant; they attempt to set up a part failure of con-sideration, but do not point out the particular labor or labors to which the plaintiff has failed to make them such title as he was bound to make, nor do they allege the -value of such portion .of the land, thereby showing to what extent they might be entitled to a reduction upon •their covenant to pay $3200. It was, perhaps, the purpose of the pleader to aver a partial failure of consideration. This plea, then, should have been sworn to. There •Is an affidavit made by the defendant’s attorney intended to authenticate the plea, but it is insufficient; if it were «competent for the attorney to make the affidavit under the statute for his client, it must be definite, and he must speak from a knowledge of the facts, if within his own "knowledge, or must state how he derives his knowledge, .-..and he must aver the truth of the same.
*415We perceive no error in this case of sufficient materiality to warrant -a, reversal of the judgment, and it is therefore affirm ecL
Affikmed.
W. A. Blackburn, for appellant, filed an elaborate argument upon the facts supporting a motion for rehearing.